Murder Essay Ao2 Flashcards
Judge made
Murder has been developed through individual cases.
This means the law on murder is outdated as it was created in the 17th century.
Therefore the law on murder does not reflect modern society which makes it difficult for lawyers to advise their clients.
Therefore the common law offence of murder should be put into a statute since it’s the most serious crime in out ELS.
MLS
All murder charges hold a MLS. This mean the judge has no choice but to give the sentence if D is convicted of murder.
This is unjust as it does not allow a sufficient differentiation of for blameworthiness. For example people who kill for euthanasia and cold blooded killers both deserve a completely different sentence.
However this was not the case in Pretty v UK.
Reforms law commission
Murder, manslaughter and infanticide report.
1st degree murder
Holds MLS. Intend to cause death/GBH with awareness serious harm will be caused.
2nd degree murder
Holds DLS. Partial defence of D not aware of serious harm caused with same intent of 1st degree murder. Or D was aware of the seriousness of the harm but only some injury was caused.
Reforms cont.
Manslaughter
Holds a fixed term sentence. Covers what is now recklessness M/S.
Intention of GBH
D can still be convicted of murder even if he/she only intended to cause GBH.
This is u fair when D who intended serious harm and D who intended to kill both receive the same sentence.
E.g. R v Vickers would have been guilty of GBH.18 if the V did not die and receive the DLS as a result.
However, this does act as a deterrent but does not reflect the blameworthiness of D.
Self defence
No defence of self defence if the force used was excessive as seen in R v Martin.
This is unfair on if D needed to used force, but used excessive force in the heat of the moment as D thought that was the appropriate amour of force.
However, this makes the law consistent and prevents floodgates.
